TOWN OF NEW BOSTON
Zoning Board of Adjustment
Meeting Minutes
11/21/06
Approved 12/04/06
Members Present: Chairman David Craig, Ed DiPietro, Greg Mattison, Bob Todd, Chris Colomb, Laura Todd, clerk, (Not voting Phil Consolini)
Chairman Craig opened the continued hearing @ 7:02PM, explaining this hearing was continued from 10/17/06, he then invited Atty. Hollis to speak.
Attorney Morgan Hollis, of Gottesman & Hollis, 39 East Pearl Street, Nashua, NH., for Mr. & Mrs. Louis Rumore, 143 Bedford Road, tax/map 8/77 & 78, Appeal From An Administrative Decision. Attorney Hollis presented a town tax map (copy in file) and reviewed his previous presentation, stating that lot 77 was approximately 1.1 acres and the Selectmen made the decision that lot 77 has no validity as a separate lot. He then reviewed the history and material presented at the previous hearing. 1. tax map, 2. tax bill, 3. deed with history of lot 78, then lot 77, 4. copy of plan of 1986, which was not recorded, 5. Bedford Rd. was moved and lot was created. Mr. Lorden had explained lot 77 was created when road was moved. He then reviewed the case of Keene vs. Meredith, (see copy used as
argument).
Attorney Hollis then presented new information; a signed affidavit from Frederick Lorden, stating his belief that the lot 77 was a valuable lot, etc., dated 11/21/06 (copy in file); a USGS map dated 1953 and another USGS map dated 1964, showing the different locations of Bedford Road (copies in file); also a plan of Land of Lorden Lumber 1964, revised in 1981 showing proposed acreage to be bought by Rumore, which was not recorded and did not follow deeds; a history of the New Boston Zoning Ordinance 1973 and 1975, in which lot size was 1 acre (see file). Attorney Morgan went on to point out the Grenier lot, was similarly non-conforming, with one lot on one side and the other on the other side of the road.
D. Craig asked if the Grenier lot had been affected by the road relocation. No was the answer. D. Craig asked if it was known when the lot was taken out. Atty. Morgan did not know.
Ed DiPietro questioned the 1.1-acre being under current use. Discussion then followed, with Bob Todd explaining that land could be counted as part of current use on either side of a road, as long as it was under one ownership.
Chris Colomb asked for clarification on how each lot was transferred to Rumores. Deed 1964, Benzanson to Lorden, of two parcels, with one parcel being 78 & 77. Lorden & Lumber Co. quit claim 1984 to Frederick Lorden, by metes and bounds, which is not recorded. He then read the deed, which mentions discontinued Bedford Road. Next, deed from Fred Lorden, to Rumore, immediately following with same description. Rumore went to town to apply for building permit, denied, so they went back to Lorden heirs for separate deed of lot 77 in 2005.
Phil asked if it was ever surveyed. Yes, but plans were not recorded.
D.Craig asked when subdivision regulations were adopted. 1984 was the answer. So, the conveyance of the two lots in 1984 does not constitute separate lots.
There was more discussion of current use. With Bob clarifying same ownership being necessary not lot size.
Chris Colomb questioned the 2005 conveyance.
D. Craig asked when the tax map presented was actually done. 1977.
D. Craig asked Atty Hollis to speak to the court case he had presented.
Atty Hollis, that case issue is whether lot are separate lots, and there is a history of them being separate lots. There are four factors raised in that case.
D. Craig said the court case was actually about separately deed lots, and this is not the case. Atty. Hollis felt the deeds were the reason for the separate lots.
D. Craig then asked direct abutters to speak.
Gerry Fairbairn of 143 Bedford Road spoke, saying that it is common to have small parcels of land created by a road Came here 1986 . The question is when Bedford Road was straightened was it one piece of land seems to be the issue. When this road was laid out, it was a dirt road, with a town of 1,000 people and no constraints of building. It was not looked upon as a special piece of land. When Mr. Rumore put it into current use, he treated it a piece with the other across the street. No record of subdivision, tax people did give it a separate number as they did all parcels that got cut off by the road. They have referenced it as no value when if fact Rumore could use this one acre piece and an acre or so of his land across the street to create one legal lot, with a 200’ square.
Chris Colomb can you justify that is could be subdivided.
Gerry explained it appears he could cut out a piece in the larger lot to fit the 200’ square.
Selectmen David Woodbury, spoke saying that he is not prepared to speak to the Grenier issue, but thinks the Selectmen that would not think it would have any bearing on this issue. Interested in the Lorden affidavit suggesting that when the road was moved in the 1960, he spoke to the Road Agent (probably Almus Chancey) and the north side of the road would be a separate lot. The affidavit doesn’t say that, but we would say the road agent doesn’t have that authority anyway. That is not the way to get a subdivision, nor does the moving of a road. Mr. Woodbury presented a tax map of 1974, which shows the property in question with a Z connecting the two parcels, showing it as one lot. The point is it stands the Selectmen do not consider it two lots, if there was an agreement; it was made by someone
who didn’t have authority, subdivisions happen through the planning board, not by an accident. The Selectmen do not see this as a legal subdivision of the property.
D. Craig asked for other abutters.
Chris Misiorski, 18 Pheasant Lane, said a lot of information has been given. What he was interested in was the intent of property by the owner in regards to the current use.
D. Craig asked if the current use application was on file, does it specifically address that issue?
Kim Burkhamer, Town Assessors office, saying the current use application, back then, was not the same of as now, with just a list of properties. No map was required. There is a release of two acres from Rumores on their house. It does not give metes and bounds, just approximation. There were about 15 tracts. Kim said she could pull the application.
More discussion followed about current use.
Atty. Hollis asked if a rebuttal would be allowed. Saying he understood the selectmen position, but in 1960s even if the road agent didn’t have the authority, and was a suggestion, the road was moved and the lot is a pre-existing lot. All of this predated the zoning ordinance and any subdivision regulations.
D. Craig at the time it was in one ownership, and now we have proof that in 1974 it is shown as one lot.
Atty. Morgan feels it was clearly shown as a separate lot, when the road went in, in 1968.
Kim Burkhamer presented the deed and current use application, which showed 163 acres, all in one parcel in, recorded 1980.
Bob Todd moved; whereas the Zoning Board finds, the subject lot #77 does not meet any of the definitions of a lot of record, in the zoning ordinance, which appear in Article 602, 502 and 207. Whereas, in general practice roads that have some history to them and have not been conveyed to town by deed do not bifurcate land titles. Move Zoning Board confirms the selectmen’s decision that 77 is not a separate lot. Greg Mattison 2nd.
D. Craig asks for discussion.
Bob said that road relations to deed tracts, it has been a long history in this town that parcels described in one deed being lots of record whether there is a road passing through them or not. Timing of the construction of this road would be any different than the historic roads in this town. It is still a roadway laid over a lot of record. It’s not much different from a power line over a piece of land, it is an easement.
Greg Mattison, commented everything point to one lot.
D. Craig added that it seems the Keene vs. Meredith case set forth things the board should be looking at, and this situation is factually distinguishable from the Keene vs. Meredith case in that this larger tract of land was always conveyed by one deed. And it wasn’t until 1984 that it was separately conveyed. The tax map is important evidence that the town treated this as one separate lot even though Mr. Lorden may not have viewed it that way. Support the motion for those additional reasons.
Motion called. ayes (5), opposed (0). unanimously passed.
Short break taken.
Chairman Craig opened the hearing up @ 8:20Pm, to hear the application submitted by Atty. Morgan Hollis of Gottesman & Hollis, 39 East Pearl Street, Nashua, for Mr. & Mrs. Louis Rumore, 143 Bedford Road, map/lot 8/78, for an AREA VARIANCE,.
Atty. Hollis stated, based on the board’s decision, applicants want to make this the lot shown on tax map as #77, a lot. In able to do that they must go to the Planning Board for subdivision. But first, they are looking for relief of acreage and from the 200’ square requirement. They want to build a single family home; a preliminary plan was presented drawn by Meridian that shows the location of the proposed house. Atty. Hollis presented the board with a summary of his criteria. (see file and please note that #3 is missing)
To, #1, 1.1 acres +- depending on who owns the old road bed, they did not include the road bed, located the house furthest away from abutters to the rear and closest to open space land adjacent to Pheasant Lane. Property is above Fairbairns and there is a tree buffer. Asked appraiser for report. Atty. Hollis then presented an appraisal done by Robert C. Bramley of R. G. Bramley & Co. Inc. Real Estate Appraisers & Consultants, 373 West Hollis Street, Nashua. NH (see file for copy).
To, #2, Allow single family home which is allowed in the area. The use in the area is a single family home. Master plan shows residential and zoning is r/a. When the first zoning was adopted 1 acre lot were required.
To #3, Because of special conditions the hardship is created by the relocation of the road, and the affidavit of Mr. Lorden to be made part of this record also. There is no other option in this instance. A suggestion has been made to cross the road, which is not reasonable. This lot stands alone.
To #4, By mutual agreement this lot was created, pre-existing zoning would allow one acre, taxes have been assessed as separate lots and evaluation of this area for a long time. Substantial justice for the town if a variance is granted and made public record, because if road isn’t there by lawful means and this lot isn’t usable the applicant intends to pursue his legal means, to find out how the road got there and does it have a right to be there.
To #5, R/A has four factors to allow 2 acres. This lot seems to qualify for all four.
D. Craig asked if board members had any questions.
Bob Todd questioned the discontinuance of the old road and was concerned that the applicant might need more than the variance they were asking for at this hearing. He suggested they ask for a continuance.
Atty. Hollis said if they do not get a variance, they do not want to go to the expense.
Ed Dipietro asked how close to the property line are septic allowed. 10’ is the answer.
D. Craig then asked if abutters wish to speak.
Dona Fairbairn 143 Bedford Road spoke to privacy, and the value being diminished if a house was built to close. She explained when they bought the property they were told that lot could not be developed and that was one of the reasons they bought, in 1988 paying a premium price. This would be contrary to the public interest, she was involved in New Boston speaks and respects the master plan being developed. In the survey presented to the town, 311 people said privacy was most important, 284 said land development regulations were important. A sense of privacy and land around you is a priority of people in town.
Chris Colomb asked Dona who made the representation that the lot wouldn’t be developed.
Dona, realtor and town hall.
Gerry Fairbairn, 143 Bedford Road, diminishing value is important to us and will make it harder to sell. Public has expressed with 2 acre requirement and 200’, maintaining the rural feel. Allowing variances isn’t going to improve. This variance is asking for almost half the size and this is setting precedence. Another method is reasonable to the applicant.
Chris Misiorski, 18 Pheasant Lane, his property is 100’ from property, and his concerns is property values. The Pheasant lane is all two acres and over and is a higher end subdivision. Concern that the proposed house might be smaller in size to fit the lot and diminish the value.
Atty. Hollis just briefly to keep an open mind, did a quick sketch and will meet setbacks, and septic ratio would work. Appraisal is subjective and this appraisal said this time it would not diminish the value. And even if this variance fails that does not say a structure wouldn’t be built on that piece of land. If this variance prevails, the applicant would still have to go to the Planning Board and meet their requirements.
D. Craig asked for motion.
Greg Mattison moved to deny variance, 2nd by D. Craig.
Discussion by D. Craig was not satisfied the criteria were met, felt the board was being asked to act as a planning board and grant a subdivision.
Chris Colomb said the hardship was not met.
Bob Todd said he could see where a house 2700 square feet, good size home and area is not a rectangle, but lot is like an umbrella, not an easy job to put house in small area. Also approximate wetland location is troubling, This would come out at planning board, but not confident they would not have to come back for more variances.
Greg Mattison said he appreciated the abutter’s opinion and the fact that Atty. Hollis had an appraiser report to be submitted.
D. Craig restated his concern that the variance application did not meet hardship criteria.
D. Craig called for vote. Motion to deny. Passed unanimously
Motion to close meeting @ 9PM, by Ed DiPietro, 2nd by Greg Mattison.
Respectfully submitted
Laura Todd
11/26/06
Approved 12/04/06
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